Counter culture talk courtesy of a Catholic convert.
The West crumbles but, as usual, God’s got a fix.

Saturday, July 13, 2013

How Catholic Bishops in Canada Privatized Contraception, Divorce and Abortion

A penitent dressed in sackcloth and ashes

Fr.Alphonse de Valk, a Basilian priest and a historian, author and editor, recently
retired as editor of Canada’s Catholic Insight magazine. A long time pro-life activist, de Valk published more than 200 articles
addressing abortion issuesduring 1970s and early ’80s and is
considered an expert on the various factors and phenomena that led to the
tragedy of legal abortion in Canada.

In the following article Fr.
de Valk explains the shocking failure of Canadian Bishops to defend Church
teaching and the natural moral law in relation to the legalization of
contraception in the 1960’s. That failure was compounded by their decisions to
widen the grounds for divorce and egregiously compounded by their bungled
resistance to the threat of legal abortion.

Keep in mind that many of the
events discussed in the article preceded the disastrous “Winnipeg
Statement” of 1968 and in fact set the stage for further
betrayal of Catholic truth by the Bishops.

Have Catholic Bishops in
Canada since demonstrated contrition for their shocking blunders and
dereliction of duty? Have they offered the sincerest of apologies for the
devastation unleashed upon Canada through their failure to stand fast in the
truth of natural moral law, Sacred Scripture and Church tradition? Have they performed
acts of penance, purging themselves of the leaven infecting their ranks and
making appropriate amendments? Have we seen even one of our Bishops in sackcloth
and ashes as a result of the dissent, heresy and rebellion of the Canadian
hierarchy?

Sadly, and tragically, no.

But of course if the reader
has any such real and substantial evidence to the contrary, I agree to immediately publish it
on this blog.

The ‘sixties and ‘seventies
show an astonishing development in the field of morality and law. In Canada, in
1967, contraceptives and homosexual acts were still forbidden; divorce was
granted only for adultery; abortion was outlawed. Today, in 1982, in Canada as
elsewhere laws have been “liberalized” and all four have become almost as
natural as cereal for breakfast, looked upon by many as a kind of birthright
which if not always necessarily desirable for everyone, must certainly be
granted as a right freely available to anyone.

This extraordinary development
was accompanied in its early stage by new permissive laws which at once
reflected and then, in turn, stimulated this development.1 In Canada such laws were prepared and passed during the years 1966-1969, being
among the earliest in the post-war Western world, following closely upon those
of Great Britain. This paper examines the role of Canadian Catholics in this
development especially as expressed in the Brief of the Canadian Conference of
Catholic Bishops (CCC) of October 11, 1966, with respect to the legal
prohibition of contraceptives.2

This paper argues that the reasoning
used to explain the changeover by the bishops from opposition to accommodation
of legal contraceptives was defective; that Catholics in general had come to
doubt the continued legitimacy of their opposition to more “liberal”
legislation; and that the combined consequence of this change in attitude with
respect to the legalization of contraceptives and the widening of the grounds
for divorce (in 1967) was the undermining of resistance, of Catholics as well
as that of others, to the legalization of abortion which followed directly upon
the other two. Like the other legal changes, the legalization of abortion in
1969 was to be supported by a large bloc of Catholic politicians even though
the bishops had rejected it. Another paper will have to deal with less
immediate but equally important consequences such as weakening the opposition
of Catholics to the contraceptive mentality.3

HISTORY

Before examining the 1966
Brief it is necessary to recall two sets of historical events. The first
concerns the spirit among Catholics at the end of the Vatican Council which can
only be mentioned here in the briefest of summaries. It was a spirit of
optimism, even exhilaration at the fresh wind blowing in the Church, a spirit
marked by a desire to turn over a new leaf and abandon old ways, to seek
harmony both within the Church and without, especially with the newly
discovered ‘separated brethren’, a spirit marked by a willingness on the part
of Catholics to sacrifice or temporarily forego legitimate points of their own
in order to meet others more than half way, not only in Church affairs but also
in political-legal affairs.

The second series of events concerns the
history of contraception. Christians had opposed contraception since the
beginning of the Church.4 Yet it was
not until the spread of Malthusian Societies actively promoting birth control
in the latter part of the nineteenth century, that legislative action was taken
in a number of countries. In the United States a federal law was passed in
1873, forbidding the sending through the mails of “any drug or medicine or any
article whatever for the prevention of conception” and also their manufacture,
importation, advertisement, sale or possession, on a penalty of up to ten years
imprisonment. This law was due to the efforts of Protestants, more particularly
to a young Protestant moral reformer, Anthony Comstock, secretary for the New
York Society for the Suppression of Vice. Elsewhere legislation on
contraception was passed through the combined efforts of Protestants and
Catholics, namely in Switzerland, Canada and the Netherlands. Catholics alone
passed legislation in Belgium (1923), Spain (1928) and Ireland (1929). In other
countries nationalists passed legislation because they were worried about loss
of national stature due to a falling birth rate as in France (1920), Italy
(1926) and Germany under Hitler.5

The law in Canada had been enacted in
1892.6 It punished with imprisonment of two
years anyone advertising or selling “any means or instructions or any medicine,
drug, or article intended or represented as a means of preventing conception.”
Yet, the crime was only a crime when acting “without lawful justification or
excuse.” In 1937 an employee of the Parents Information Bureau visiting women
to give them instructions on birth control was judged as having acted for the
public good and the court dismissed the case against him.7

By 1966 the prohibition against
contraceptives was to be found under Article 150 of the Criminal Code. In the
USA by that time only one state, Massachusetts, still had a law similar to the
one in Canada.

While within the Catholic Church
opposition to contraceptives had grown stronger during the first half of the
twentieth century, opinion without the Church had begun to shift towards
acceptance, especially from the 1930’s onwards. Among Christian communities
outside the Catholic Church the Anglicans took the lead in approving
contraception at the Lambeth Conference of August 1930, followed over the next
two decades by a number of Protestant denominations. In contrast, Pope Pius XI
provided Catholics with a new summary of Catholic teaching on Christian
Marriage in his encyclical Casti Connubii of 1930. The Pope reiterated
the traditional defense of ancient and modem Catholic teaching and condemned
contraception as “intrinsically immoral.” As the years went by science
continued to provide more and more informa­tion about biological aspects of
human nature. Thus Catholics, too, found themselves facing increasingly complex
questions about disputed and permitted means of controlling conception such as
the use of the sterile period which came to be approved by the Church as
legitimate in the planning of a family.

At the beginning of the `sixties the
birth control pill made its appearance. Was it a contraceptive or could it be
used for medical purposes? If the pill could be judged noncontraceptive, it
would not fall under the Church’s general ban. Early advisory groups and the
Commis­sion set up by Pope Paul VI in 1964 to study this matter seemed to be divided.
The debate began to expand about the legitimacy of contra­ceptives in general.
In the spring of 1967 the press published secret reports of two opposing groups
within the Commission. But Pope Paul VI felt obliged in conscience to resist
the enormous pressure from throughout the Western world to come to a quick
decision and was to withhold his answer until the summer of 1968.

In the meantime, during this period of a
few years the traditional clear understanding on the part of Catholics of the
essential purposes of marriage, the moral laws regulating marital relations and
the use of sex outside of marriage, seemed to be replaced by questions and
doubts.8 The media were in full battle array
against the Church. In the Council three bishops, including Cardinal Léger of
Montreal, spoke about a need for doctrinal re-examination, which in turn was
proclaimed highly significant and meaningful by Time and Newsweek.9 Under increasing pressure from the media
and Planned Parenthood groups, theologians, priests and laity found reasons to
justify change without waiting for the Pope. Some did so after much soul
searching; others without any thought whatever, accepting the pill and other
contraceptives as a way of changing their life-style. In general, from 1964 onwards
there was a sudden spate of articles and books with arguments in favour of a
change.

Among Canadian theologians who declared
contraceptives acceptable was Father Gregory Baum, O.S.A. of St. Michael’s
College at the University of Toronto, at the Council a personal peritus of
Archbishop Pocock of Toronto. Father Baum was to be a leader in this respect in
all of North America.10 At the end of 1964 when the Council was
still discussing the draft Gaudium et Spes (Church in the World) Gregory
Baum stated in the American Catholic lay weekly Commonweal (No­vember
20) that the Council fathers “did not pretend that the Church knew the answers
to the urgent questions which married people all over the world ask.” Hence
Catholics were mistaken in thinking that the Church had made up its mind on
contraception – if it could be ques­tioned in Council, it was obviously not
infallible. As an historian recently summed it up,

“warming
to a theme which would be increasingly dominant in his work in the years ahead,
he asserted that the real issue was one’s attitude to the world – it should not
be regarded as an enemy. The next year, writing in the same journal, (December
24), he formulated the position which came to be adopted by all those who
sought to appropriate the Council's authority as the basis for change since the
Council had not adopted the traditional terminology of the primary and
secondary ends of marriage, it could be assumed to be leaving open the
possibility of birth control, and the official teaching was therefore in
doubt.”11

On April 9, 1966, the Globe Magazine carried
Father Baum’s article “Catholics may use contraceptives now.” This led to a
considerable exchange of letters in the Globe and Mail. While Mgr
Vincent Foy, presiding judge of the Toronto Matrimonial Tribunal was opposed,
most letter writers supported Father Baum claiming that few people disagreed
with the view that the moral decision to use or not to use contraceptives
belonged to the individual married couple. In the United States, meanwhile,
Baum had been joined by Richard McCormick, S.J., Father Charles Curran and
others, including the Jesuit Magazine America which ceased to support
the papal view from 1966 onwards.

Again, at about the same time as the Baum
article, an international petition to the Vatican signed by 527 Catholic laymen
warned against maintaining the old directives on contraceptives. Dr. John Rock,
a co­inventor of the pill, was one who signed. Among the 129 Canadians who
signed were Torontonians Professors Larry Lynch, Leslie Dewart, and Mark
MacGuigan, P.J. Hunt, social worker with the Catholic Chil­drens’ Aid Society,
and R.C.O. Arnold, librarian of York University; forty-seven were
French-speaking.12 Earlier, several contributors to the 1965 book Brief to
the Bishops had taken a similar stand.13 Such was the background to the 1966
deliberations of the Standing Committee on Health and Welfare on whether or not
the existing prohibition of con­traception should be maintained. Clearly,
pressure was being exerted on the Bishops from all sides and this at a time
when they themselves, together with the Church at large, were puzzled about the
moral status of certain aspects of birth control.

STANDING COMMITTEE ON HEALTH AND WELFARE

Early in 1966 Prime Minister Pearson
decided that the House of Commons Standing Committee on Health and Welfare
should hold hearings on the subject of contraceptives. The Committee held
public hearings on eleven days from March 1 till April 28, 1966, during which
delegates from national or local organizations appeared before it. In going
through the Proceedings today one is struck by several features of these
hearings.14
One is the basic unity among most of the submitted briefs and letters and
witnesses’ testimony. A close examination reveals a fact not generally known at
the time, if at all, namely that this testi­mony came from like-minded groups
centred around the closely inter­locked Family Planning and the Planned
Parenthood Federations of Canada. For example, the United Church Brief,
submitted on April 5, was drafted mainly by the Rev. Dr. Frank Fidler,
secretary of the Church’s Marriage Guidance Council. The same person had
appeared already as the chief spokesman for the March 24 presentation of the
Family Planning Federation of Canada of which he was the President. On April 21
one of the two spokesmen for the Unitarian Church was a Mr. John McNab who had
appeared earlier also as a witness for the Family Planning Federation of
Canada. At the end of the Unitarian Church hearing he indicated that he was
President of Planned Parenthood of Ottawa. The Brief presented on March 24,
1966 by the Family Planning Federation of Canada was not only on behalf of
half-a-dozen local Planned Parenthood groups from cities across Canada but also
on behalf of the Department of Christian Social Service of the Anglican Church
of Canada and the Board of Christian Education of the Presby­terian Church in
Canada.15
When the Anglicans appeared before the Committee three of its four spokesmen
proved to be executive members of the above mentioned Christian Social Service
Council while the fourth one, the Rt. Rev. Henry Hunt, Suffragan Bishop of
Toronto, was chairman of the Clergy Advisory Committee of Planned Parenthood of
Toronto. The chief spokesman for the Canadian Welfare Council, Mr. Norman
Knight, an official with the Department of Health and Welfare, acknowledged
himself to be a member of the Family Planning Associ­ation.16
I did not examine the matter exhaustively but it is quite probable that
counting other direct of indirect links with such organizations as the
Department of Health and Welfare and the Vanier Institute of the Family,
perhaps 80% of all submissions to the Standing Committee may have originated
with persons influenced by the Planned Parenthood­-Family Planning organizations.17

Like-minded groups naturally emphasized
similar themes. One standard theme was that the law was being broken, a claim
mentioned at once by the very first witness, M.P. Robert Prittie, whose own
bill was one of four before the Committee, and who quoted an April 24, 1965
Toronto Star editorial “Canada’s 3,000,000 lawbreakers” as proof.18 This
charge was repeated throughout the hearings despite the caution of another
member whose bill was before the Committee, M. P. , Robert Stanbury, that there
had been “a great deal of exaggeration of the extent to which the law has been
broken.”19

A second recurrent theme was
overpopulation, almost an obsession with delegates. Dr. Ernest Howse, Moderator
of the United Church, went as far as to project a world population of 48
billion for the near future.20 In the eyes of the witnesses the
population crisis made family planning not merely desirable but urgent and
absolutely necessary. Consequently, spokesmen were at pain to present the use
of contracep­tives as the only “responsible” way of parenting. A third,
related, theme or rather a cluster of themes was that every child must be a
wanted child, that battered children were obviously unwanted children, that the
existing law did not permit family planning and that the poor were being
discriminated against by not having legal access to contra­ceptives as a
consequence of which they were forced to have children.

All of the above arguments were well
received by the Standing Committee, of whose 24 members only three M.P.’s,
O’Keefe, Rock and Cowan, proved at all critical. Because of the questions posed
by these members at that time a critical reading of the evidence today shows
that for many witnesses family planning meant basically planning not to have a
family. Also, while many demanded removal of the existing law on the ground
that birth control was a private matter, those most committed to birth control
indicated clearly enough that they were really hoping and planning for public
intervention. There was much talk about “war on poverty,” through preventing
the poor from having children. In this respect the worst submission was that of
the Welfare Council of Canada which interpreted “responsible parenthood” to
mean “the principle that parents should voluntarily (my underlining)
limit their families to the number of children they can properly support,”
something which was to be done with the aid of government intervention on all
levels.21

When the briefs and witnesses are viewed
as a whole, the most striking note is the absence of any discussion on possible
social impli­cations of legalizing contraceptives. Only Ralph Cowan, a
Presbyterian, persisted in raising questions about the impact of free and legal
contra­ceptives on the destruction of traditional moral standards and on such
threats as venereal disease. Almost everyone ignored him and his questions.22
Instead, just about every discussion of the three-month-long hearings concerned
the question of advertising: Whether controls on advertising were necessary or
not and if so, whether they were possible. By the end of the hearings evidence
had been presented that contra­ceptives were already being advertised openly
and that effective controls would prove virtually impossible.

During the three months of hearings form
mid-February to the middle of May several references had been made to the
position of Catholics, although by the end of April the Bishops had let it be
known that they would be unable to adjust to the Committee’s timetable. They
needed considerable more time to circulate their draft to bishops across the
country and to seek further approval of any amendments which might come from
this consultation.23 Eventually the Bishops’ Brief arrived in October, six months
after the close of the hearings. It indicated that the
Bishops would not oppose the legalization of contraceptives. Shortly
thereafter, in November, the Committee sat twice more to approve its final
report and to receive a delegation from the Pentecostal Church of Canada which
proved to be the only body in the country opposed to a change in legislation on
the grounds that “such permissive amend­ments... will tend to increase
immorality among the youth of our nation, with resultant increases in social
disorders.”24

During the earlier hearings the Committee
had heard from two Catholic sources, namely two priest-professors and two
groups closely associated with Catholics, the natural family planning
organization Serena and the L’Association des Médecins de Langue Française,
whose spokes­man, Dr. Jacques Baillargeon, was also associated with Serena.
These two sources revealed that the opposition of Canadian Catholics to the
continuation of a restrictive law against contraceptives was disinte­grating.
Aside from that everyone was aware, because frequent refer­ences were made to
it, that the acceptance of the rhythm method proved that the Catholic Church
was not opposed to family planning or birth control as such. But almost no one
seemed to distinguish between birth control as such and the use of
contraceptives. Only the latter was forbidden by law.

The views of the two priests were
introduced during the hearing of March 22 when Jean Paul Matte (L. Champlain)
read into the Committee’s record a letter from them explaining that in their
view Catholics would not do morally wrong if they favoured proposed changes in
the Criminal Code.25 They offered the opinion that because the Church’s
marriage preparation courses mentioned the Church-approved rhythm method, they
must be illegal.26 They referred to the preamble of another of the Bills before
the Committee, that of Ian Wahn which stated that:

“The
purpose of this bill is to exclude criminal liability, in circum­stances where
there is no serious danger to the public interest, in respect of acts of birth
control which more properly should be left to the individual conscience and to
ecclesiastical and moral laws and not made the subject of criminal
legislation.”27

The priests agreed with this preamble,
stating that the ‘function of law is not exactly that of morality and that human
law is not meant to forbid or punish all evil actions.’ A spokesman for the
Voice of Women quickly pointed out to the Committee that in the book Brief
to the Bishops, Toronto Catholic lawyer John O’Driscoll had taken a
position “exactly as set out here” by Father Vezina.28

The submissions of Dr. Laurent Potvin for
Serena of Ottawa and that of Dr. Baillargeon for the Quebec doctors were
similar in nature. Both assumed that their specialty, natural family planning,
could not be promoted unless there was freedom for contraceptives. Hence they
spoke in favour of that, though they also expressed their uneasiness about
methods of contraception as such. Dr. Baillargeon even pointed out that some
contraceptives might, in fact, be forms of abortion, a fact erroneously but
hotly disputed by Committee member Dr. Brand of Saskatoon.29 Both
doctors pleaded for extensive counselling and controls on the distribution and
advertising of contraceptives.

As noted, the Committee discussions
ignored the issue of harm­fulness. What qualified the preamble’s statement that
criminal liability should be removed, was the phrase “in circumstances where
there is no serious danger to the public interest.” It was certainly true by
traditional Catholic teaching that “human law is not meant to forbid all evil
actions,” but whether human law should or should not forbid a particular action
depends on whether or not such an action constitutes “a serious danger to the
public interest.” Yet this crucial matter was entirely bypassed by the priests
while the submissions of the Serena doctors touched upon it only fleetingly and
indirectly. The latter’s position was summed up by Dr. Potvin when he stated
that “our movement does not wish to impose any personal or religious
restrictions by law. Even if we do not recommend the use of such means of
contraception, we do not wish to impose our views on those who consider
themselves morally justified in using them.”30

These two submissions together
foreshadowed the October position of the Bishops. The October Brief was to
announce the withdrawal of the Bishops’ opposition to the legal prohibition of
contraceptives. The Brief based this withdrawal on a double argument. First,
that matters of politics belonged to the jurisdiction of the laity and not the
bishops and that the laity could decide the question of public law without the
knowledge whether the use of contraceptives was morally right or wrong. Second,
that the Bishops themselves held the existing law to be contrary to the common
good. As will become clear, this position was to consolidate the view that
opposition to contraceptives should be regarded in Dr. Potvin’s words, as
something essentially “personal and religious,” something one cannot “impose”
on others, something which for others of different persuasion might well be
“morally justified.”

OCTOBER 1966 BRIEF

According to its authors, the Brief of
October 1966 had a twofold purpose.31 First, the Bishops wanted to discuss
“how one should conceive the role of a Christian legislator faced with any controversial
moral issue.” Second, they wanted to present their views on the proposed
changes in the Criminal Code. The overall theme of the Brief was “that which
the Church teaches to be morally reprehensible should not necessarily be
considered as indictable by the criminal code of a country.”32

The Bishops devoted almost four pages of
their Brief to the Coun­cil’s teaching on the role of the laity in general and
the Christian legislator in particular. They showed that civil legislation is a
task en­trusted to the laity, not to the hierarchy; that not everything
forbidden by the Church should be forbidden by civil law; that though
Christians in public life must be guided by a well informed Christian
conscience, they should, nevertheless, “act in their own name as citizens.” The
Bishops pointed especially to the Dogmatic Constitution of the Church, quoting
the sentence,

“the
faithful should learn to distinguish carefully between those rights and duties
which are theirs as members of the Church, and those which they have as members
of society... In our time it is most urgent that this distinction ... should
shine forth as radiantly as possible in the practice of the faithful, so that
the mission of the Church may correspond more adequately to the special conditions
of the world today” (No. 36)

Finally, quoting from the Decree on
the Apostolate of the Laity, (Section 7) the Bishops emphasized once more
that the laity acting as citizens

“must
cooperate with other citizens, using their own particular skills and acting on
their own responsibility.”

The teaching on the autonomy of the laity
was immediately followed by the bishops' position vis-à-vis the existing
prohibition of contraceptives. In order to turn a wrongful act into a statutory
crime punishable by law they said at least four conditions should be fulfilled:

1. It should first of all be clear that
the wrongful act notably injures the common good;2. The law forbidding the wrongful act
should be capable of enforcement, because it is not in the interest of the
common good to pass a law which cannot be enforced;3. The law should be equitable in its
incidence, i.e., its burden should not fall on one group in society alone;4. It should not give rise to evils
greater than those it was designed to suppress.

The Bishops at once declared the existing
law inadequate and deficient “independently of the morality or immorality of
various methods of birth prevention.” “A large number of our fellow citizens,”
they said,

“believe
that this law violates their right to be informed and helped towards
responsible parenthood in accordance with their personal beliefs.”

Hence, in their opinion, legislation on
contraceptives was an example where it did “not serve the common good to
translate moral law into civil laws.” Thus they declared that they would not
oppose changes in the legislation on contraceptives if “safeguards against
irresponsible sales and advertising... were provided” and if personal freedom
was protected. Indeed they went on to say,

“we
could easily envisage an active cooperation and even leadership on the part of
lay Catholics to change a law which under present conditions they might well
judge to be harmful to public order and to the common good.”33

Finally, the Bishops warned that the
application of these principles would be quite different in regard to that part
of the Code which had to do with abortion.

The Brief was the product of team work
and extensive dialogue between bishops, priests and laity, the first such
endeavour in the history of the Church in Canada.34

It did not create a public stir, at least
not among English Canadian Catholics due in part, perhaps, to their lack of
journals and other national means of communication. However, Bishop Alexander
Carter, president of the CCC, did receive criticism by private correspondence,
enough to warrant a press release a few months later re-iterating the basic
points.35
According to the Bishop many correspondents were “confused.”36

ANALYSIS

The novelty of the Brief consisted above
all in the Bishops with­drawing their opposition to the existing law which they
considered “inadequate and deficient” because it did not meet all four
conditions needed for a proper law; hence, they declared it an example of where
it does “not serve the common good to translate moral laws into civil laws.”

Now when a law is declared “deficient,”
it is normal for those who make the statement to bring proof. Yet, except for
condition 2, the Brief did not contain proofs. Condition 2 stated that a law,
in order to be effective, should be enforceable. In 1966 it was public
knowledge that contraceptives were being sold under the counter and that some
public institutions were not observing the law. That was an awkward situation
and an important deficiency. Condition 2, therefore, could be used as an argument
to support those who favoured change. This is what the Bishops did when,
immediately after having declared Article 150 to be deficient, they stated “The
law is not in fact enforced, and the good of public peace might well be lost by
attempts to enforce it.”

This is the only proof offered in the
Brief. The non-enforcement was indeed a fact. It was the only fact. And
even this fact was a modest one because the harm which supposedly might come
from attempts to enforce the law, could only be speculation. One could just as
well project some good coming from enforcement.

The Brief did not offer opinions on the
other three conditions. Number 3, stating that the law must apply equally to
all, was being fulfilled. This left conditions 1 and 4, both concerned with the
supposed but unspecified harmfulness of what was being prohibited. The Brief
did not investigate what evils the existing law was designed to suppress. It
did not speculate what might happen if the law were to be removed. It did so
for the good reason that conditions 1 and 4 were by their very nature beyond
proof acceptable to modem society, that is, in the form of verifiable empirical
sociological data. Scientific data about what effects a law will have after it
has been changed are not available until sufficient time has lapsed after the
change has been made. This difficulty was shared by both advocates and
opponents of a change. Neither side could bring demonstrable evidence to shore
up their case about the possible harmful or non-harmful effects of
contraceptives. But what was about to happen in Canada was that the views of
those who still feared ill consequences for the common good but who had
no so-called scientific data to back them up, were dismissed for lack of proof;
while those who confidently projected no ill effects for the common good
had their views accepted, without proof being given or required. The Bishops’
Brief belongs to the latter category, insofar as it refused to say anything
about possible harm resulting from the law’s removal from the Criminal Code.

One other point should be considered. The
argument that a law must be changed because it cannot be enforced was very
popular at the time, especially with the Toronto Globe. But it is not
quite as strong an argument as might appear. As one member of the Standing
Committee commented, by that token the Ten Commandments should be abolished.37 The
point was that sometimes the value of law consists as much in its teaching as
in its enforcement. Moreover, a law may only be partially observed and yet
serve a useful function.

The analysis may be summarized as
follows. The Brief’s argument was the law’s inadequacy. Yet, of the four
conditions by which to measure whether a law is adequate or not, some kind of
proof had been provided for one condition only and even that could be
interpreted variously. Hence a preliminary conclusion seems to indicate that in
exchange for peace and harmony on the issue of contraception, the Bishops were
prepared to sacrifice the law as teacher and take their chances about future
ill effects, the latter remaining unexamined and with the surmise of no ill
effects presented as self-evident common sense.

What about the second part of the Brief,
the argument about the autonomy of the laity in political and social affairs
taken from the Second Vatican Council? It is well put and stands on its merits.
Unfortunately, it came to be linked to an extraordinary idea expressed in the
Brief several times, namely that approval (an by implication, disapproval) of
contraception was “an entirely different question” from voting on the law at
hand. As the Brief put it: a judgement on the existing law could be made “quite
independently of the morality or immorality of various methods of birth
prevention.”38 The same idea was emphasized in the press release:

“the
question that may come before Parliament is not whether the use of
contraceptives is morally right or morally wrong. It is not up to Parliament to
decide such a question.”

To my mind this view is incomprehensible.
I fail to see how a legislator could vote conscientiously on contraceptives
without first deciding whether they were good or bad for society, a decision
which in itself must surely be related to whether contraceptives were judged to
be morally right, wrong or neutral. After all, the Bishops themselves had
pointed to the moral character of the law in question when they stated that
this was an example where it does “not serve the common good to translate moral
laws into civil laws.” If the Bishops were correct in their view that the moral
question of contraceptives was “not up to Parliament to decide,” then they
should have asked Parliament to defer its decision until the proper
authorities, that is, they themselves as guardians of faith and morality, had
decided this issue. As it was, they now left the impression that morality was
not involved at all.

Another possible interpretation of the
Bishops’ view that law and morality were two radically different things in the
case of Article 150, was the idea that the Bishops’ believed the issue had
moral overtones for Catholics but not for the public in general. Such an
interpretation could be based on the language employed by the Bishops with
respect to those who favoured removing the law. The Bishops spoke of helping
them towards “responsible” parenthood. They noted that if the law were to be
maintained it might well be a case of “violating their right to be informed.”
As for Catholic legislators, the Bishops encouraged them to bring about
“appropriate” changes. They even envisaged “active cooperation and even
leadership” in changing a law, which they said, the laity “might well judge to
be harmful to public order and the common good.”" Thus the very choice of
words seemed to indicate the Bishops’ belief that if contraceptives were not
acceptable for Catholics, they might well be so for non-Catholics.

The Brief has some other problems. Even
as a procedure, a way of doing things, it raises questions. It was addressed to
a public body, a standing committee of the House of Commons, yet it deals
mainly with Catholic teaching meant for the Catholic legislator. Moreover,
despite its insistence on the laity’s autonomy, it practically pre-empted the
freedom of choice of Catholic legislators not to go along with the
“liberalizing” tendencies. The Brief could have been addressed to the faithful,
seeking and encouraging public discussion; instead, it came to the legislators
as a final and definitive word.39 As for the question on everyone’s mind,
the one which the Bishops as religious leaders were expected to answer, – that
is, the question of the morality or immorality of contraception – to this the
Bishops were in conscience unable to respond.

SUMMARY

In final analysis the contents of the
Brief appear to this author as follows: While retaining the right to speak out
on matters of public morality, the Bishops indicated that as a general rule
politics pertains to the laity and that the Catholic legislator must
essentially follow his/her own conscience in respect to public law.

With respect to the specific problem of
Article 150 of the Criminal Code, the Bishops indicated that the general rule
should apply. They advised the laity that they could make the decision without
further enquiry about the morality or immorality of the use of contraceptives.
Despite the general rule just enunciated, the Bishops then presented their own
political view of Article 150, presumably as an example how the decsion could
be made. They declared the continued existence of this Article contrary to the
common good of society. They did not do so in virtue of their right to judge
whether the use of contraceptives was right or wrong. Rather, they based their
stand on the fact that one of four general rules necessary for the proper
operation of law seemed inoperative. As for the other three rules, especially
the two pertaining to the possible harmfulness to society of permissive
legislation, the Bishops remained silent.

It is the view of this author that the
Brief’s argumentation in unfortunate and that it would have been better if the
Bishops had remained silent. As it was, the Brief declared the prohibition of
contra­ceptives to be a purely political matter, soluble by the laity,
following their own conscience, basing their decision on the pragmatic rule of
whether or not the law could be enforced. In reality, in my view, the political
decision on contraceptives could not be separated from its inherent character
of being right or wrong as a human act. This rightness or wrongness would also
determine whether legalization would prove in the long run harmful or harmless
to society, a point of key concern to the propriety or impropriety of passing
new legislation.

As for the immediate, short term,
consequences, through their with­drawal of opposition against permissive
legislation on contraceptives, the Bishops, however unwittingly, were to give
further credence to the idea already abroad that law and morality are unrelated
and that the law should be neutral in questions of marital or family morality.
Contracep­tion was part of family morality. By speaking out against Article 150
the Brief strengthened the opinion of those who argued that the only reasons
for opposition to birth control were emotion and religion. Religion, many
argued, is purely private and personal and should there­fore have no place in
legislation.

GOVERNMENT’S RESPONSE

In their Brief on contraceptives the
Bishops had spoken of certain safeguards “without which,” they said, “the
common good would certainly suffer.” These safeguards were never implemented.
With respect to the Bishops’ request for protection of juveniles, the parliamen­tary
committee itself already proved lukewarm about preventing adver­tising and
sales to minors. When the Bill was enacted in March 1969, sales and
distribution were placed under the Food and Drug Act, hence only for possible
checks on the nature and quality of the contraceptive, not as a check on its
availability. By the mid-seventies Planned Parent­hood spokesmen were demanding
the availability of contraceptives for everyone, including their placement in
high school washrooms.

With respect to the Bishops’ request for
safeguards against coercion and abuse of personal freedom, no such safeguards
were added to the Act. Since 1969 the Bishops’ apprehension about possible
abuses has been justified on a number of occasions by such actions as the
forced sterilization of mentally handicapped in Ontario and the secret sterili­zation
of Indian and Eskimo women in Saskatchewan and Manitoba.

While the government’s non-compliance
with these warnings cannot be held against the Bishops’ Brief, it nevertheless
throws an adverse light on the Bishops’ practical political wisdom. A similar
distressing development appeared when, in April 1967, the Bishops applied the
distinction between civil and moral law to divorce. While Catholics would
continue to reject divorce for themselves, the Bishops stated, they would not
insist on having these views imposed on others. However, they added, “we cannot
overemphasize that an indiscriminate broadening of the grounds for divorce is
not the solution to the problem of unhappy marriages.” Hence they suggested
“extensive rethinking” of the entire marriage legislation and important changes
in divorce procedures with comprehensive counselling services.

In time divorce was made easy, but the
Bishops recommendations for counselling and revised divorce procedures came to
nothing. The committee, and later the Ministry of Justice, Mr. Trudeau, dealt
only with the extension of grounds and refused to accept marriage reconcili­ation
as a government task. In spite of a joint ecumenical protest signed by various
church representatives in the fall of 1967, the Minister of Justice refused to
go beyond the purely negative role of the law in dissolving marriage unions.
The protest was filed and nothing was ever heard of it again. Other sources
made it abundantly clear that they considered the moral proposals of the
Churches completely unrealistic for law courts based on the adversary system.40

ABORTION

The most important of the short-range
consequences of the Brief was that the politicians ignored the Bishops’ warning
attached to their distinction between civil and moral law, namely

“that
the modification of the law in question is not to extend to that part of it
which has to do with abortion. For our conclusion would be quite different were
there question of such direct destruction of life.”

Two days after the Bishops published the
separation of civil and moral law theory and its application to the sale of
contraceptives, the Toronto Globe and Mail hailed it as something which
would apply equally well to divorce and abortion.41 At the beginning of December 1967 the
Minister of Justice, Mr. Trudeau, announced his Omnibus reform of the Criminal
Code, including the legalization of abortion. Already on his appointment as
Justice Minister on April 3, 1967 it had been noted that he had “strong views
on laws governing divorce, birth control and abortion. His views are liberal.”42
On December 15, 1967 speaking at the second reading of the Bill to widen grounds
for divorce he said in Parliament:

“We
are now living in a social climate in which people are beginning to realize,
perhaps for the first time, that we are not entitled to impose the concepts
which belong to a sacred society upon a civil or profane society. The concepts
of the Civil society in which we live, are pluralistic and I think this
Parliament realizes it would be a mistake for us to try to legislate into the
society, concepts which belong to a theological or sacred order. These are very
important concepts no doubt, but they should not by themselves be considered as
the sole guide for government.”

The boldness of Mr. Trudeau’s move on
abortion vis-à-vis the Catholic Bishops and the Catholic community is best
appreciated by recalling that the announcement came on December 21, 1967 when
the combined House of Commons-Senate Committee-hearings on abortion had not yet
reached their half-way mark, when the promised statement from the Catholic
Bishops had not yet been received, and after the Committee’s halfway report had
been doctored up first so as to approve abortion, while most of its members had
left already for their Chrismas holidays.43

While the Bishops clearly disapproved of
legalizing abortion, they did not change their attitude towards the political
process. The Bishops issued a pastoral letter in opposition to abortion in
January 1968, rather than a Brief to the government, but this slight was
noticed by nobody. A CCC delegation headed by Bishop De Roo eventually did
appear before the Parliamentary Committee in March to explain this pastoral
letter. For all practical purposes, its presentation was self-­defeating. It
began with: We are not here to impose our view...” and concluded with: “we do
not believe that our moral principle must be enshrined in Criminal Law.”44
Needless to say, with such an attitude it wasn’t.

There followed a year's delay. Yet during
it there was no concerted effort to inform and educate the legislators, no
attempt to counter false arguments; no prophetic stand. The post-Vatican II
spirit mentioned at the beginning of this paper, the spirit of optimism,
harmony and goodwill, of being the first to make concessions wherever possible,
of being the first to make a gesture of reconciliation, was too pervasive and
too dominant even for the issue of abortion to disturb it.

On July 29, 1968 Pope Paul VI published
his long awaited answer on the birth control question. It rejected
contraception unequivocally. A month later Bishop Alexander Carter, in his
prefeace to the CCC booklet with the three statements on contraception, divorce
and abortion wrote:

“The
fact that this booklet is being published subsequent to the promulgation of
Humanae Vitae adds to its interest. Nothing in the encyclical, to my mind, is
in conflict with the position of the Canadian Bishops.”45

Yet, the Toronto Globe and Mail had
noticed the day after the encyclical’s date of publication that the Pope’s
stand was the opposite of that of the Canadian Bishops. Instead of withdrawing
opposition to changes in the law such as contraceptives and divorce, the
Pope appealed to public authorities to resist “that by legal means
practices contrary to the natural and divine law be introduced into that
fundamental cell, the family.”46 Happily for the Globe, it was
able to report right away that the Pope’s “dangerous” appeal would have no
effect whatever on the newly elected government of Prime Minister Trudeau; its
plans to proceed with birth control and abortion legislation had not been
changed. The Prime Minister and the new Minister of Justice, the reporter
observed, were both Catholics who knew how to separate “private religion and
public business.”47

Thus it came about that the legalization
of abortion was introduced, defended and pushed through by a heavily Catholic
Party, thereby making Canada the only country in the world where Catholics bear
this responsibility. Fortunately for the reputation of the Canadian Catholic
community, some individuals as well as delegates from various groups and from
the Catholic Hospital Association had vigorously spoken out against
legalization.48 Moreover, at the time of the vote not all Catholic
legislators allowed the desire for harmony and conformity to overwhelm their
sense of justice and right. Under the leadership of Real Caouette a handful of
Créditistes from Quebec, Catholic to the core, fought the legalization tooth
and nail much to the annoyance and ridicule of the English Canadian press, but
without a public word of support from the Canadian Catholic Conference of
Bishops.

POSTSCRIPT

The October 1966 Brief of the Bishops was
inspired by honest sentiments. “Our willingness to distinguish,” said the
Bishops, is “the surest pledge of our desire to join with all men of goodwill.”49 This
paper does not imply that these sentiments were untimely, or not needed, or
dishonorable. Rather the purpose of this paper has been to explain that the
Brief, honorable as its motives may have been, contained major flaws. Because
this flawed thinking still exercices its influence in 1982, I want to return to
it once more.

Let us ask once more: why did the Bishops
withdraw their oppo­sition to legalizing contraceptives and widening the
grounds for divorce, and why did many Catholics do the same to abortion? Answer
because they had come to accept, willingly or unwillingly, consciously or
subconsciously, what was being hammered into their heads by the secular media
and a wide variety of spokesmen and women for the new ethic, namely, that
opposition in these matters was purely theological and denominational, in short,
for Catholics only. More and more people came to believe that opposition to
birth control was a Catholic thing. Wrote Toronto lawyer John O’Driscoll in his
article for the book Brief to the Bishops published in 1965: “As a
product of the separate school system, a Catholic high school and a Catholic
College I was always taught that birth control was morally wrong.” Noting a
number of practical questions were being raised, he thought the Church should
speak out quickly though not in a document on marriage issued by ce­libates.
Meanwhile, he said, let us be free to repeal Article 150 of the Criminal Code.

With respect to divorce Mr. O’Driscoll
undoubtedly also represented the thinking of many when he wrote the following:

“We
might as well face reality – no amount of education or preaching by Catholics
is going to miraculously and overnight convince our non-Catholic brethern that
divorce is wrong and contrary to Christ’s teachings. Am I entitled in charity
to force my views on a non-believer until such time as he accepts my belief?”50

Mr. O'Driscoll then continued in the
light hearted, almost flippant tone, of one who does want to mention a rather
exotic but harmless idea:

“It
is argued that if the grounds of divorce were widened the incidence of divorce
would skyrocket and the whole fibre of our society would be shaken. This I do
not believe.”51

Neither, apparently, did many other
Canadians, including the Bishops. The questions of contraception, divorce and
even abortion had become privatized into a sectarian issue and, hence,
trivialized into something of little or no importance. Catholics themselves had
forgotten that the traditional teaching of the Church in these matters had been
and still was rooted in the idea that changes in these areas would inevitably deeply
affect the common good and the social fabric.52

Notes:

1.I do not want to discuss the
question of the chicken and the egg. I premise my remarks on the view that the
1968-1969 legislative acts reflected changes in society which had taken place
already, as well as accelerated these changes by giving them a stamp of
approval and legitimation.

2.The
CCC is the national organization of the Catholic Bishops of Canada. In 1968 it
numbered 101 episcopal members with a general secretariate divided into various
departments in Ottawa. In 1980 it was renamed CCCB, Canadian Catholic
Conference of Bishops.

3.This
paper is scheduled for the 1983 Learned Societies in Vancouver. “Morality,
Politics and the Canadian Catholic Church, 1969-1982."

4.See
John T. Noonan, Contraception. A History of its Treatment by the Catholic
Theologians and Canonists, Harvard, 1966, p 72 + +

8.With
respect to the unity of thought on contraception until the early ‘sixties, see
Noonan, op. cit., p. 6, or Chapter VI “The Birth Control Battle” in Msgr.
George Kelly, The Battle for the American Church, New York, 1979.

10.[Note
9a in the printed version. All subsequent notes in this edition are one numeral
higher than in the printed version.] In November 1976 Gregory Baum announced
that he would no longer continue his priestly work.

11.Ibid., p. 18-19. In Europe
theologians such as Bernard Haring and Edward Schillebeeckx had been saying
similar things. For Schillebeeckx, see H. Bronkhorst “Dutch Theologians and
Doctors Differ on Pill,” Boston Pilot, March 14, 1964.

12.Globe
and Mail, June
11, 1966.

13.See
J. Wilson, “The Pill and the Conjugal Concept” pp. 174-178, in Harris, Paul
(ed), Brief to the Bishops, Canadian
Catholic Laymen Speak Their Minds, Toronto, Longmans, 1965. Mr. Wilson’s
opening sentence read: “In recent articles, Father Bernard Haring has used the
phrase “responsible parenthood” to describe a conjugal concept that only twenty
years ago might have linked his name with Margaret Sanger’s...”

14.Minutes
of Proceedings and Evidence. Standing Committee of Health and Welfare, House of Commons,
first session; twenty-seventh Parliament 1966, pp. 609.

15.Ibid, p. 120.

16.Ibid, p. 256.

17.See
references on pages 306 and 307 with respect to the Vanier Institute. At this
stage the Family Planning Federation was essentially “a lobby group to have the
criminal code amended to allow for the dissemination of family planning
information,” Barbara Bishop, Activities of the Family Planning Federation
of Canada, Speech delivered at St. John's, Newfoundland, May 11, 1973. By
1966 the FPP had begun lobbying for legal abortions as well. Western
Catholic Reporter, Editorial, April 21, 1966.

18.Ibid, p. 10.

19.Ibid, p. 41.

20.April
5, 1966, p. 186.

21.Ibid., p. 250.

22.Mr.
Ralph Cown was to be the only member of the Committee who disassociated himself
from its final report. Later on he was also to be one of the few Liberals to
oppose abortion.

23.Proceedings,
op. cit., pp.
288-9.

24.Proceedings,
November 11,
1966, p. 588.

25.The
priests were Rev. Louis P. Vezina,O.M.I., superior of the Oblate Fathers’
centre for ecclesiastical studies in Ottawa and Director of the Institute of
Pastoral Studies, St. Paul’s University; and Jean Guy Lemarier, O.M.I., moral
theologian. See “Vote favoring changes in Code on birth control not immoral” Prairie
Messenger, March 30, 1966, p. 1. Also Proceedings, March 22, 1966,
p. 84.

26.This
notion had been suggested by the Globe and Mail several years earlier in
one of its several editorial attacks on the Catholic Church and is further
proof of the confusion about birth control (in general) and contraceptives as
specific means.

29.The
Serena presentation took place on March 31, 1966; that of the Quebec doctors on
April 19. Dr. Potvin’s presentation was recorded in the Globe and Mail,
April 1, 1966 under the heading “Birth Control Prohibition Outmoded: Catholic M.D.”

30.Proceedings, p. 172.

31.Page
13 in C.C.C., Contraception, Divorce, Abortion. Three statements by
(the) Canadian Catholic Conference. (Discussion outline by CCC Family Life
Bureau), Ottawa, August 1968. pp. 64.

39.This
contradiction was noted at the time by the Catholic Register, Editorial,
October 22, 1966. (See A. de Valk, Morality and Law in Canadian Politics:
The Abortion Controversy, Montreal, 1974, p. 90).

40.See
for example the editorial “Grounds for Divorce” in the Winnipeg Free Press,
December 20, 1967.

44.Ibid.
page 79. The
opening statement was by Bishop De Roo, the closing one by Fr. Sheridan. S.J.

45.Contraception...
op. cit., p.
6.

46.Humane
Vitae, Section
23.

47.See
A. de Valk, op. cit., p. 99 The new Minister of Justice was John Turner.

48.When
the CCC office even refused to react to a Canadian Press report that the
Bishops were not opposed to the legislation, the Director of the Catholic
Hospital Association, Fr. J.W. Mole, OMI, issued a statement condemning the
legislation as well as denouncing it from the pulpit in Ottawa’s Resurrection
Church. This brought sufficient publicity to postpone any plans to introduce
the legislation immediately after Christmas. Officials at the CCC were
influenced by the views of Fr. Robert Drinan, S.J., Law Dean at Boston College,
who thought that all laws on abortion should be repealed. Drinan’s views had
been reported in the Globe, Sept. 8, 1967. Interview with Fr. Mole,
Oct. 16, 1981.

49.CCC.
Contraception... p. 16.

50.O’Driscoll,
in Harris, op. cit., p. 37.

51.Ibid, p. 32.

52.By
1980 there was no doubt whatever that the 1966-1969 changes had done tremendous
harm to the common good under all the traditional aspects of injury to society,
injury to self, injury to nature and offense to God. This harm includes the
physically harmful effects of contraceptives, but above all the spread of the
contraceptive mentality with its direct effects on dramatic increases in
extra-marital relationships, teenage pregnancies, contraceptive sterilizations,
skyrocketing divorce rates, the venereal disease epidemic, teenage suicides and
other related disorders. As for abortion, the killing of incredible numbers of
the unborn has become a veritable holocaust.